United States Court of Appeals
for the Federal Circuit
__________________________
DOUGLAS KAHN,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
__________________________
2009-3125
__________________________
Petition for review of the Merit Systems Protection
Board in AT1221060966-M-1.
___________________________
Decided: September 7, 2010
___________________________
THOMAS G. ROTH, Law Offices of Thomas G. Roth, of
West Orange, New Jersey, argued for petitioner.
L. MISHA PREHEIM, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director. Of counsel on the brief was
LESLIE K. SCHUMACHER, Senior Attorney, Office of Chief
Counsel, Drug Enforcement Administration, of Spring-
field, Virginia.
KAHN v. JUSTICE 2
__________________________
Before GAJARSA, MAYER, and SCHALL, Circuit Judges.
GAJARSA, Circuit Judge.
This is a matter arising under section 4(a) of the
Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C. §
2302(b)(8) (2006). Douglas Kahn is a Special Agent
Criminal Investigator with the U.S. Drug Enforcement
Administration (“DEA”). He appeals from the Merit
Systems Protection Board’s (“Board”) final decision that
Kahn did not make protected disclosures under the WPA.
See id. § 2302(b)(8)(A). This is Kahn’s second appeal from
the Board. In the previous appeal, this court reversed the
administrative judge’s decision that the Board lacked
jurisdiction over his individual right of action (“IRA”). See
Kahn v. Dep’t of Justice, 528 F.3d 1336, 1338 (Fed. Cir.
2008). We affirm and hold that Kahn did not make pro-
tected disclosures under the WPA.
BACKGROUND
The DEA employed Kahn as a Special Agent Criminal
Investigator, “to plan and conduct highly complex crimi-
nal investigations primarily involving major violators in
large-scale drug trafficking networks operating through-
out several regions of the United States, nationwide or
internationally.” J.A. 1178. His performance work plan
shows that the DEA tasked Kahn with, e.g., “‘initiat[ing],
plan[ning], and coordinat[ing] investigations and en-
forcement operations,” “recruit[ing], develop[ing], de-
brief[ing], document[ing], and/or coordinat[ing]
program[s] on confidential sources,” and “ensur[ing]
investigative and other administrative files are up-to-date
and in compliance with DEA policies and procedures.”
J.A. 7 (alterations in the original) (internal quotation
marks omitted); see also J.A. 1208–14; J.A. 1232–40.
3 KAHN v. JUSTICE
In 2002, Kahn was part of a “Provisional Task Force”
(“Task Force”) in the DEA’s office in Beaufort, South
Carolina. Kahn, 528 F.3d at 1338. The Task Force inves-
tigated drug crimes and aided the U.S. Attorney’s Office
in Charleston, South Carolina in developing cases against
persons accused of drug crimes. Id. In addition to Kahn,
the Task Force included DEA Special Agent Henry
Meehan, Officer Donald Annis from the Beaufort County
Sheriff’s Office, and Officer Tony Herald from the Beau-
fort Police Department. Id. at 1338–39. The Beaufort
DEA Office designated Annis and Herald as Task Force
Agents. Id. at 1339 n.3. As members of the Task Force,
Annis and Herald were sworn in as “full-time DEA task
force officers.” J.A. 256. All members of the Beaufort
Task Force reported to the Resident Agent in Charge,
Steven Mitchell, located in Charleston, South Carolina.
Kahn, 528 F.3d at 1339. Mitchell, in turn, reported to the
Assistant Special Agent in Charge, John Ozaluk, who was
stationed in the DEA’s Columbia, South Carolina Office.
Id.
Although Kahn and Meehan shared the same position
and government service level, the administrative judge
found that Kahn “functioned as the ‘lead agent’ in the
Beaufort office, the single point of contact through which
operational details of all ongoing investigations were
submitted up the supervisory chain for review and ap-
proval.” J.A. 8. As Mitchell testified, “[A]ny operational
things went through [Kahn].” J.A. 190.
I. Alleged Protected Disclosures &
Transfer to Atlanta Field Office
Sometime in 2002, an individual with an extensive
criminal record approached the Task Force about becom-
ing a confidential source for the DEA. Kahn, 528 F.3d at
1339. Based on conversations with the informant, Annis
KAHN v. JUSTICE 4
planned on registering the informant with the DEA as a
confidential source and using him to obtain crack cocaine
from a known DEA target. 1 To facilitate this plan,
Meehan began preparing paperwork to register the in-
formant as a confidential source. In speaking with Annis,
Kahn learned of the informant’s criminal history and that
he was recently released from prison and on probation.
Kahn informed Annis that although the DEA would try to
register the informant, his criminal history and probation
status might disqualify him as a confidential source under
DEA rules and regulations. Kahn subsequently contacted
Mitchell and informed him of Annis’s plan to use the
informant. After Kahn discussed the planned ruse with
Mitchell, Mitchell instructed Kahn to forbid Annis from
using the informant to obtain crack cocaine from the
target. Kahn then communicated that command to
Annis.
Annis disobeyed that order. On approximately May 9,
2002, the informant obtained an ounce of crack cocaine
from the DEA target on consignment and transferred the
contraband to Annis. Annis then carried the crack co-
caine to the DEA Beaufort Office and demanded that the
DEA provide the informant money for the cocaine. With
the hope of registering the informant after the fact, Kahn
contacted Mitchell to obtain information on the DEA’s
policy on using confidential sources “to see what [the
1 Because the administrative judge did not make
findings on the chronology of events and the parties do
not dispute chronology, we rely on Kahn’s memorandum
to Ozaluk for basic dates in our recitation of the facts. See
J.A. 565–68. We note, however, that Kahn stipulated that
this memorandum is not part of his alleged protected
disclosures and thus consider the memorandum as merely
evidence of his communications, not as a basis for a
protected disclosure.
5 KAHN v. JUSTICE
DEA] could do to assist this investigation in moving
forward.” J.A. 446 (alteration added).
On May 10, 2002, Kahn and Mitchell discussed the
DEA’s new rules and regulations regarding confidential
sources, which only Mitchell had access to on a DEA
computer. Mitchell testified that under DEA regulations,
a DEA agent in Annis’s situation would have needed to
comply with the following procedures. First, the agent
would need to submit an investigative report that in-
cluded the target of the investigation, the potential
source’s duties, and the potential source’s biographical
information, including his criminal history. Second, the
agent would need to brief the confidential source on his
duties in the investigation. Third, the agent would need
to obtain written approval from the state parole office
before registering an individual with an extensive crimi-
nal history on probation as a confidential source. Fourth,
the Resident Agent in Charge and the Assistant Special
Agent in Charge would need to approve an operational
plan that placed any necessary restrictions on using a
confidential source with an extensive criminal history. If
the Resident Agent in Charge and the Assistant Special
Agent in Charge did not approve of an operational plan
and state or local officers carried out a plan under their
own authority, the DEA would not reimburse state or
local police departments for expenditures.2
After reviewing DEA rules for confidential sources,
Mitchell and Kahn decided “that there [were] no short
cuts that [they] could do to utilize this informant,” and
that the DEA could not pay for the crack cocaine unless
the informant was registered as a confidential source with
2 Aside from Mitchell’s testimony, the parties did
not submit evidence of the 2002 DEA rules and regula-
tions for confidential sources in the Beaufort office.
KAHN v. JUSTICE 6
the DEA. J.A. 447 (alterations added). Kahn informed
Annis of their decision and suggested that he contact the
Beaufort County Sheriff’s Office to pay for the cocaine.
Kahn reported that Annis was displeased with this deci-
sion, stating that “it was an embarrassment for the DEA
to have to ask the Beaufort County Sheriff’s Office for
money.” J.A. 566.
On May 13, 2002, Annis informed Kahn and Meehan
that DEA Special Agent Steve Migioia and Assistant U.S.
Attorney Robert Bickerton in Charleston had authorized
the DEA to pay for the cocaine. Surprised by the change
of plans, Meehan drove to Charleston to further discuss
using the informant with Mitchell, leaving Annis and
Kahn alone in the office. Kahn reported that he and
Annis then engaged in a heated exchange of words.
According to Kahn, Annis claimed that the DEA “was a
joke” and warned Kahn that he “did not know who [he]
was messing with and that [he] better leave him alone.”
J.A. 567 (alterations added). At the end of the argument,
Annis stated that he wanted to leave the Task Force.
Kahn subsequently contacted Mitchell and informed him
of his argument with Annis. According to Mitchell, how-
ever, Kahn first contacted Ozaluk and informed him of
the argument before reporting to Mitchell. Neither Kahn
nor Ozaluk make reference to such a conversation in their
testimonies.
Later that day, Annis obtained retroactive permission
from Beaufort County Sheriff P.J. Tanner to pay for the
cocaine as a one-time-only expenditure. However, Tanner
declined to use the individual as an informant because of
his criminal history.
7 KAHN v. JUSTICE
At the end of May or beginning of June 2002, 3 Kahn
and Meehan met with Ozaluk for lunch. At Ozaluk’s
request, Kahn recounted how Annis used an unregistered
informant to obtain crack cocaine from a DEA target and
how Annis had changed his attitude towards the DEA.
Based on Annis’s use of the unregistered informant, Kahn
recommended that Ozaluk remove him from the Task
Force. Ozaluk agreed and decided to remove Annis be-
cause he “tried to circumvent our policies on establishing
an individual to become a confidential source of informa-
tion and had also engaged in actions with this individual
that were undocumented and would have led to problems
for them had he been allowed to continue.” J.A. 65.
However, Ozaluk did not report the misconduct to the
Office of Professional Responsibility (“OPR”) because he
felt that Kahn had prevented Annis from violating DEA
rules on confidential sources.
On June 14, 2002, Mitchell sent a letter to Tanner re-
questing that he remove Annis from the Task Force and
reassign him to the Beaufort County Sheriff’s Office.
Tanner granted the request and subsequently removed
Annis from the Task Force. Kahn, 528 F.3d at 1339.
After the removal, relations between the DEA and the
U.S. Attorney’s Office in Charleston broke down in a
dispute over Kahn. Upset that Annis was removed,
Bickerton accused Kahn of being a liar and claimed that
Kahn misrepresented facts in his reports. Based on
Bickerton’s accusations, OPR and the U.S. Attorney’s
Office conducted independent investigations to determine
whether Kahn had previously made false statements or
3 We note that Mitchell’s account of Kahn’s meeting
with Ozaluk differs from the chronology set out in Kahn
and Ozaluk’s testimonies. Because Mitchell was not
present at the meeting, we rely on Kahn and Ozaluk’s
testimonies for the chronology.
KAHN v. JUSTICE 8
misrepresentations. The agencies conducted the investi-
gations in part to determine whether prosecutors using
Kahn as a witness would need to disclose evidence that
affected his credibility at trial under Giglio v. United
States, 405 U.S. 150 (1972). 4 See Kahn, 528 F.3d at 1339–
40 & n.4. Both OPR and the U.S. Attorney’s Office
cleared Kahn of any wrongdoing, concluding that he was
not Giglio-impaired. Despite these findings, the U.S.
Attorney’s Office maintained that Kahn had a “character
flaw” that required Giglio disclosures in all cases in which
he would testify and insisted that the DEA transfer Kahn
to another office. Although Kahn expressed a desire to fill
an opening in North Carolina, the DEA transferred Kahn
to its Atlanta Field Office in 2005.
II. Whistleblower Claim
On August 24, 2005, Kahn filed a whistleblower com-
plaint with the Office of Special Counsel (“OSC”). Kahn,
528 F.3d at 1338. In his complaint, Kahn alleged that (1)
his reports to Mitchell and Ozaluk constituted protected
disclosures under the WPA and (2) “that the DEA had
engaged in a prohibited personnel practice in retaliation
for those disclosures by transferring him to the Atlanta
Field [Office].” Id. (alteration added). On July 5, 2006,
OSC notified Kahn that “it had terminated its inquiry
into his complaint and would not be taking corrective
action.” Id. Kahn then filed his IRA appeal with the
Board, which the Board dismissed for lack of jurisdiction.
Id. at 1340. In his initial decision, the administrative
judge found that Kahn failed to make a non-frivolous
whistleblower claim because his alleged protected disclo-
sures were part of his normal job duties. This court
4 Under Giglio, the agency would be required to
disclose the facts of any of Kahn’s false statements to the
defense during prosecution.
9 KAHN v. JUSTICE
reversed, explaining that “although this is a close case,
the combination of . . . Kahn’s job description and the
competing sworn statements of . . . Kahn and . . . Mitchell
places the evidence on the question of . . . Kahn’s normal
duties in equipoise.” Kahn, 528 F.3d at 1343. Accord-
ingly, this court held that Kahn had made a non-frivolous
allegation of an adverse personnel action based on a
protected disclosure and remanded the case to the Board
“for a hearing on the merits of the appeal.” Id. at 1344.
On remand, the administrative judge held that Kahn
failed to establish by a preponderance of the evidence that
he made a protected disclosure. First, the administrative
judge found that when Kahn communicated to Mitchell
his concerns over Annis’s use of an unregistered infor-
mant, he was not sure whether using such an informant
constituted a violation of DEA rules. Instead of reporting
a violation, the administrative judge found that he was
“inquiring as to whether there was a way that . . . An-
nis’[s] interest in using this problematic [informant] could
be accommodated within DEA policy.” J.A. 5 (alterations
added). In finding against Kahn, the administrative
judge emphasized that “[t]he record does not reflect that
any violation of DEA policy actually occurred.” J.A. 4. In
making these findings, the administrative judge implied
that Kahn did not reasonably believe that Annis had
violated DEA regulations. Second, the administrative
judge held that even if Kahn reasonably believed that he
reported a violation of DEA regulations to Mitchell,
Kahn’s disclosures were not protected under the WPA
because they were made as part of his normal duties
through normal channels. “[I]t is readily apparent from
all available evidence, including the appellant’s own
testimony, that in discussing Mr. Annis’[s] actual or
proposed use of the [informant] in question with his
superiors, [Kahn] was, in fact, engaged in the core pur-
KAHN v. JUSTICE 10
pose of his position of Criminal Investigator . . . .” J.A. 7
(alterations added). Because Kahn did not request re-
hearing from the Board, the administrative judge’s deci-
sion became the Board’s final decision.
Kahn timely appealed to this court. This court has ju-
risdiction over Kahn’s appeal pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The WPA prohibits agencies from taking an adverse
personnel action against an employee in retaliation for
“any disclosure of information by an employee or appli-
cant which the employee or applicant reasonably believes
evidences . . . a violation of any law, rule, or regulation.”
5 U.S.C. § 2302(b)(8)(A). To make a whistleblower claim
under the WPA, a petitioner must first exhaust his ad-
ministrative remedies and make a non-frivolous allega-
tion of an adverse personnel action based on a protected
disclosure. Yunus v. Dep’t of Veterans Affairs, 242 F.3d
1367, 1372 (Fed. Cir. 2001). After satisfying these juris-
dictional requirements, the petitioner is entitled to a
hearing on the merits, see 5 U.S.C. § 7701, in which the
petitioner bears the burden of proof to establish “by a
preponderance of the evidence” the merits of his claim,
5 C.F.R. § 1201.56(a)(2)(i) (2009); see also Garcia v. Dep’t
of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006)
(en banc).
Specifically, the petitioner must establish by a pre-
ponderance of the evidence the following four elements:
(1) the acting official has the authority to take, recom-
mend, or approve any personnel action; (2) the aggrieved
employee made a disclosure protected under 5 U.S.C. §
2302(b)(8)(A); (3) the acting official used his authority to
take, or refuse to take, a personnel action against the
aggrieved employee; and (4) the protected disclosure was
11 KAHN v. JUSTICE
a contributing factor in the agency’s personnel action. See
Chambers v. Dep’t of Interior, 602 F.3d 1370, 1376
(Fed. Cir. 2010); Lachance v. White, 174 F.3d 1378, 1380
(Fed. Cir. 1999). This appeal only concerns the second
and fourth elements—whether the aggrieved employee
made a protected disclosure and whether that protected
disclosure was a contributing factor.
Our review of Board decisions is limited. We may
only reverse a Board decision if we find the decision to be
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures
required by law; or unsupported by substantial evidence.
5 U.S.C. § 7703(c).
I. Protected Disclosure
A protected disclosure is, in relevant part, “any disclo-
sure of information by an employee or applicant which the
employee or applicant reasonably believes evidences . . . a
violation of any law, rule, or regulation.” 5 U.S.C. §
2302(b)(8)(A). We have interpreted this statutory defini-
tion to cover an employee communication (1) that dis-
closes unknown information, (2) that an employee would
reasonably believe is unlawful, and (3) that is outside the
scope of the employee’s normal duties or communicated
outside of normal channels.
First, we have interpreted the term “disclosure”
broadly to reflect the WPA’s legislative history. See
Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1347–48
(Fed. Cir. 2001). In 1989, Congress enacted the WPA in
part to broaden the disclosures protected under the Civil
Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.
1111, 1116. Specifically, Congress changed the language
of 5 U.S.C. § 2302(b)(8)(A) from “a disclosure” to “any
disclosure.” Whistleblower Protection Act of 1989, Pub. L.
No. 101-12, § 4(a)(3), 103 Stat. 16, 32 (emphases added).
KAHN v. JUSTICE 12
Even though the WPA covers a broad swath of com-
munications, the communication must still be a “disclo-
sure” to qualify for protection. We have generally defined
the term “disclosure” to mean “to reveal something that
was hidden and not known.” Huffman, 263 F.3d at 1350.
Moreover, “the disclosure must pertain to the underlying
conduct, rather than to the asserted fact of its unlawful-
ness or impropriety.” Id. at 1350 n.2. Thus an employee
who reports to a wrongdoer that his conduct is unlawful
or improper has not made a protected disclosure if the
wrongdoer already knew of his conduct. Id.
Second, the petitioner must establish that “a disinter-
ested observer with knowledge of the essential facts
known to and readily ascertainable by the employee
[would] reasonably conclude that the actions of the gov-
ernment evidence [a violation of any law, rule, or regula-
tion].” Lachance, 174 F.3d at 1381 (alterations added).
While analyzing purely subjective beliefs is insufficient,
id., a petitioner’s motive for making disclosures is rele-
vant to the merits of the whistleblower claim in as much
as it is evidence of reasonable belief, Johnston v. Merit
Sys. Prot. Bd., 518 F.3d 905, 911 (Fed. Cir. 2008). The
petitioner need not prove an actual violation of law, rule,
or regulation. “The test is not whether [the petitioner]
was able to prove [a violation], but rather could a disin-
terested observer with knowledge of the essential facts
known to and readily ascertainable by [the petitioner]
reasonably conclude . . . that a violation did occur.” Drake
v. Agency for Int’l Dev., 543 F.3d 1377, 1382 (Fed. Cir.
2008) (alterations added).
Third, an employee must communicate the informa-
tion either outside the scope of his normal duties or
outside of normal channels to qualify as a protected
disclosure. In Huffman, we outlined three categories into
which an employee’s communications may fall, including
13 KAHN v. JUSTICE
(a) disclosures made as part of normal duties through
normal channels, (b) disclosures made as part of normal
duties outside of normal channels, and (c) disclosures
made outside of normal or assigned duties. Huffman, 263
F.3d at 1352–54; see also Fields v. Dep’t of Justice, 452
F.3d 1297, 1305 (Fed. Cir. 2006). A communication can
only qualify as a protected disclosure if it falls within the
latter two categories. Kahn, 528 F.3d at 1341; Fields, 452
F.3d at 1305.
In this case, the administrative judge did not err in
finding that Kahn’s communications with Mitchell were
not protected disclosures because Kahn reported Annis’s
conduct to Mitchell as part of normal duties through
normal channels. See Huffman, 263 F.3d at 1352. Ac-
cording to Kahn’s official job description, a Special Agent
Criminal Investigator “plan[s] and conduct[s] highly
complex criminal investigations primarily involving major
violators in large-scale drug trafficking networks operat-
ing throughout several regions of the United States.”
J.A. 1178 (alterations added). Kahn’s position included
“‘initiat[ing], plan[ning], and coordinat[ing] investigations
and enforcement operations,” “recruit[ing], develop[ing],
debrief[ing], document[ing], and/or coordinat[ing] pro-
gram[s] on confidential sources,” and “ensur[ing] investi-
gative and other administrative files are up-to-date and in
compliance with DEA policies and procedures.” J.A. 7
(alterations in the original) (internal quotation marks
omitted). In addition to this basic job description, the
administrative judge credited Mitchell and Ozaluk’s
testimony that Kahn was the DEA Beaufort Office’s “lead
agent” and that he would have been responsible for re-
viewing the operational plan and the use of any confiden-
tial source in Annis’s investigation—even if Meehan was
working with Annis as Kahn claimed. The administrative
judge found that Kahn “functioned as the ‘lead agent’ in
KAHN v. JUSTICE 14
the Beaufort office, the single point of contact through
which operational details of all ongoing investigations
were submitted up the supervisory chain for review and
approval.” J.A. 8.
Even though Kahn argues on appeal that his role as
lead agent only required him to review reports for gram-
mar and DEA format, Mitchell and Ozaluk’s testimony
support the administrative judge’s finding that Kahn’s
informal responsibilities included reporting to Mitchell on
ongoing investigations assigned to other agents, including
reports on confidential sources. The administrative judge
appears to have credited Mitchell and Ozaluk’s testimony
over Kahn’s. We have held that “an evaluation of witness
credibility is within the discretion of the Board and that,
in general, such evaluations are ‘virtually unreviewable’
on appeal.” King v. Dep’t of Health & Human Servs., 133
F.3d 1450, 1453 (Fed. Cir. 1998) (quoting Clark v. Dep’t of
Army, 997 F.2d 1466, 1473 (Fed. Cir. 1993)). Giving
deference to the Board’s credibility determinations, we
conclude that Kahn’s communications with Mitchell fall
under Huffman category one as disclosures made as part
of normal duties through normal channels. See 263 F.3d
at 1352. Accordingly, we affirm the administrative
judge’s finding that Kahn’s communications with Mitchell
were not protected disclosures.
In addition to Kahn’s communications with Mitchell,
we must also consider his communications with Ozaluk.
The government asserts that Kahn has not argued on
appeal that the administrative judge erred in finding that
his communications with Ozaluk were not protected. See
Oral Argument at 18:40–18:56, Kahn v. Dep’t of Justice,
No. 2009-3125 (Fed. Cir. Mar. 2, 2010) [hereinafter “Oral
Argument”], available at http://oralarguments.cafc.uscourts.gov/mp3/2009-
3125.mp3. Since his initial complaint to OSC, however,
Kahn has alleged that both his reports to Mitchell and
15 KAHN v. JUSTICE
Ozaluk constituted protected disclosures. On appeal,
Kahn maintains that he “verbally told . . . Mitchell and
. . . Ozaluk of . . . Annis’[s] violations of DEA’s rules and
regulations.” Appellant’s Br. 9; see also id. at 10, 27, 33,
41. Because Kahn has consistently maintained that his
communications with Ozaluk were protected disclosures,
he has not waived an argument as to those communica-
tions on appeal.
As for the merits, however, Kahn’s communications
with Ozaluk do not qualify as disclosures under our
precedent. See Huffman, 263 F.3d at 1350. Although the
administrative judge failed to separately analyze Kahn’s
communications with Ozaluk, Kahn’s own account dem-
onstrates that his communications with Ozaluk were not
disclosures. According to Kahn, he communicated all of
his interactions with Annis to Mitchell before his lunch
meeting with Ozaluk. Consequently, the DEA was aware
of Annis’s conduct before Ozaluk met Kahn for lunch at
the end of May or beginning of June 2002. As Ozaluk
testified, “[Kahn] was advising . . . Mitchell on everything
that was happening in that office, Task Force Officer
Annis, and other administrative functions and operational
issues.” J.A. 79. Although Ozaluk testified that he was
unsure as to which information on Annis’s conduct came
from Kahn and which information came from Mitchell, see
J.A. 81, Ozaluk undisputedly knew that Kahn and Annis
had a disagreement over the informant before he met
with Kahn for lunch and requested that Kahn “explain
what was going on with . . . Annis,” J.A. 397; see also J.A.
79–81. Therefore, Kahn’s report to Ozaluk was not a
disclosure because Kahn did not “reveal something that
was hidden and not known” to the DEA. Huffman, 263
F.3d at 1350; see also Oral Argument at 19:22–20:33,
20:29–20:48.
KAHN v. JUSTICE 16
To be sure, we have interpreted the term “disclosure”
broadly to include any disclosure. Id. at 147–48. Con-
gress inserted the word “any” into § 2302(b)(8)(A) to
protect at least some employees who report information
that agency members already knew when the employees’
disclosures satisfy the other statutory requirements. See
S. Rep. No. 100-413, at 13 (1988) (“[I]t is inappropriate for
disclosures to be protected only if they are made for
certain purposes or to certain employees or only if the
employee is the first to raise the issue.”). We accounted
for this legislative history when we defined disclosure and
outlined the three disclosure categories in Huffman. See
263 F.3d at 1347–54. We noted that Huffman category
two includes “a law enforcement officer who is responsible
for investigating crime by government employees who,
feeling that the normal chain of command is unrespon-
sive, reports wrongdoing outside of normal channels.” Id.
at 1354. The WPA thus recognizes an employee’s report
of wrongdoing as a disclosure when his first-line supervi-
sor ignores the report and the employee is forced to com-
municate the wrongdoing outside the chain of command.
But there is no evidence that Mitchell, Kahn’s first-line
supervisor, disregarded Kahn’s reports on Annis’s con-
duct. Instead, Mitchell worked closely with Kahn in an
attempt to register the informant as a confidential source
and relayed at least some of Kahn’s reports on Annis to
Ozaluk.
Although we affirm the Board’s judgment, we note
that the administrative judge erroneously stressed that
Annis did not violate DEA rules. The administrative
judge credited Mitchell’s testimony that Annis was “‘try-
ing to take of [sic] his hat, I believe, as a task force officer
and put it on as a Beaufort County deputy.’” J.A. 4 (quot-
ing J.A. 186). According to the administrative judge,
Tanner’s after-the-fact, one-time authorization to pur-
17 KAHN v. JUSTICE
chase the cocaine for Annis’s informant technically
avoided violating DEA rules. Even if Annis avoided
violating DEA rules, the administrative judge failed to
analyze Annis’s conduct from a disinterested observer’s
perspective. Instead, the administrative judge appears to
have “erroneously required [Kahn] to prove that an actual
violation occurred,” which is directly contrary to our
precedent. Drake, 543 F.3d at 1382 (alteration added).
Moreover, the administrative judge failed to analyze
whether a disinterested observer at the time Kahn spoke
with Ozaluk would have reasonably believed he was
reporting misconduct. According to the administrative
judge, “prior to his conversations with . . . Mitchell,
[Kahn] did not himself know whether, in fact, . . . An-
nis’[s] activities were in violation of agency guidelines.”
J.A. 5 (alterations added). But that says nothing about
the knowledge a reasonable observer in Kahn’s position
would have had after speaking with Mitchell about the
guidelines. Despite these legal errors, we affirm the
Board’s decision on other grounds as explained above. 5
We reiterate, however, that “[t]he test is not whether [the
petitioner] was able to prove [a violation], but rather
5 Kahn argues that the government conceded in the
first appeal that Kahn reasonably believed that he was
reporting a violation of DEA rules or regulations. In
support, Kahn cites footnote five of our previous opinion,
which states, “On appeal, the government does not dis-
pute the [administrative judge]’s assumption that . . .
Kahn’s reports constituted disclosures of violations of
DEA rules and regulations.” Kahn, 528 F.3d at 1344 n.5
(alteration added). Because we hold that Kahn’s commu-
nications with Mitchell were part of his normal duties
through normal channels and that his communications
with Ozaluk were not disclosures, we need not address
whether a disinterested observer in Kahn’s position could
reasonably believe that Annis violated DEA rules and
regulations or whether the government conceded as much.
KAHN v. JUSTICE 18
could a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by [the
petitioner] reasonably conclude . . . that a violation did
occur.” Drake, 543 F.3d at 1382 (alterations added).
II. Contributing Factor
Even though the administrative judge declined to ad-
dress the issue, Kahn requests that this court find that
the government has not shown by clear and convincing
evidence that the DEA would have transferred him to the
Atlanta Field Office independent of his communications
with Mitchell and Ozaluk. On remand from the previous
appeal, the DEA stipulated that Kahn’s communications
with his supervisors were a contributing factor to its
decision to transfer Kahn. See Appellee’s Br. 33 n.6; J.A.
27. Pursuant to 5 U.S.C. § 1221(e)(2), “[i]f the employee
or applicant makes out a prima facie whistleblower claim,
the agency is given an opportunity to prove, by clear and
convincing evidence, that it would have taken the same
personnel action in the absence of the protected disclo-
sure.” Fellhoelter v. Dep’t of Agriculture, 568 F.3d 965,
970–71 (Fed. Cir. 2009). Because we hold that Kahn’s
communications were not protected under the WPA, we
need not address whether the government could have
shown by clear and convincing evidence that it would
have transferred Kahn to the Atlanta Field Office in the
absence of his communications.
However, had we agreed with Kahn in this appeal, we
would have again remanded the case to the Board to
determine whether the DEA had shown by clear and
convincing evidence that it would have transferred Kahn
to the Atlanta Field Office independent of his protected
disclosure. To avoid such inefficiency in the future, the
Board should resolve all contested issues on the merits
after a petitioner in a whistleblowing case has established
19 KAHN v. JUSTICE
jurisdiction and is entitled to a hearing on the merits. Cf.
Simmons Fastener Corp. v. Ill. Tool Works, Inc., 739 F.2d
1573, 1576 (Fed. Cir. 1984) (directing district courts to
decide both infringement and validity before final judg-
ment). Accordingly, in a hearing on the merits, the Board
should make findings on whether (1) the acting official
had the authority to take, recommend, or approve any
personnel action; (2) the aggrieved employee made a
disclosure protected under § 2302(b)(8)(A); (3) the acting
official used his authority to take, or refuse to take, a
personnel action against the aggrieved employee; (4) the
protected disclosure was a contributing factor in the
agency’s personnel action; and (5) the agency would have
taken the same personnel action in the absence of the
protected disclosure. See Chambers, 602 F.3d at 1376;
Fellhoelter, 568 F.3d at 970–71. If the Board finds one of
those contested issues dispositive, it should nevertheless
resolve the remaining issues to expedite resolution of a
case on appeal.
CONCLUSION
For the foregoing reasons, we hold that Kahn’s com-
munications with Mitchell and Ozaluk were not protected
disclosures under the WPA.
AFFIRMED
COSTS
No Costs.